Chandigarh

StateCommission

RP/22/2015

Omaxe Limited - Complainant(s)

Versus

Munish Kumar - Opp.Party(s)

Munish Gupta, Adv.

04 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

Revision Petition No.	:	22 of 2015
Date of Institution	:	03.06.2015
Date of Decision	:	04.06.2015

 

1. Omaxe Limited C/o Omaxe Park Woods, Baddi, Tehsil Nalagarh, District Solan (HP), through its Project Incharge.
2. Omaxe Limited, 7 Local Shopping Centre, Kalkaji, New Delhi-110019, through its Managing Director

Through their authorized representative namely Sh. Harsh Bhargav, 7, Local Shopping Centre, Kalkaji, New Delhi-110019.

……Revision-Petitioners/Opposite Parties No.2 and 3

V e r s u s

 

1. Munish Kumar son of Sh. Barjinder Mohan, resident of House No.917/1, Sector 40-A, Chandigarh.

              ....Respondent/Complainant

 

2. Omaxe Limited, SCO 139-140, 1^st Floor, Sector 8-C, Madhya Marg, Chandigarh.

 ....Performa Respondent/Opposite Party No.1

 

BEFORE:         SH. DEV RAJ, PRESIDING MEMBER.

                        MRS. PADMA PANDEY, MEMBER

               

Argued by:

 

Sh. Munish Gupta, Advocate for the Revision- Petitioners/Opposite Parties No.2 and 3.

Sh. Tarun Malhotra, Advocate for respondent No.1/complainant.

 

PER DEV RAJ, PRESIDING MEMBER

            This Revision-Petition is directed against the order dated 17.04.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, Opposite Parties No.2 and 3 (now Revision-Petitioners), were proceeded against exparte, as none put in appearance, on their behalf, despite deemed service.

2.       The facts, in brief, are that, the complainant applied for allotment of a residential plot, in the project of the Opposite Parties, launched by them, under the name and style of “Omaxe Park Woods”, Baddi–II. The complainant was allotted residential plot No.10, measuring 99 sq. meters/118.40 Sq. Yards in the residential township project of the Opposite Parties i.e. “Omaxe Park Woods”, Baddi – II situated in Village Chakkan (Baddi), Tehsil Nalagarh, District Solan (H.P.). It was stated that Agreement dated 24.11.2008 (Annexure C-1) was executed between the parties, in respect of the unit, in question. It was further stated that the complainant paid the entire sale consideration, in respect of the unit, in question, as a result whereof, he was issued “No Dues Certificate”, from the Opposite Parties, vide email (Annexure C-4). It was further stated that possession of the plot, in question, was to be delivered to the complainant, on or before 24.02.2010, yet the Opposite Parties failed to do so. It was further stated that, on the other hand, vide letter dated 04.05.2010, the Opposite Parties told the complainant to take possession of the plot, in question. It was further stated that the complainant again received letter dated 09.04.2010 in this regard. It was further stated that, as such, the complainant visited the site, where the plot, in question, was carved and allotted to him, but was shocked to see that the basic amenities had still not been provided there. It was further stated that the complainant brought the said fact to the notice of the Opposite Parties, but to no avail. 
3.       It was further stated that the complainant wrote many letters to the Opposite Parties and also made numerous requests for possession of the said plot, but the same was not delivered. It was further stated that even after an inordinate delay of more than about six years from the date of allotment of the said plot, till date, no effort was made by the Opposite Parties, to give possession of the same to the complainant. It was further stated that even necessary approvals/sanctions had not been obtained by the Opposite Parties, from the Competent Authorities.
4.       It was further stated that left with no other alternative, the complainant served legal notice dated 16.07.2013 (Annexure C-6), upon the Opposite Parties, followed by reminder, but to no avail.  It was further stated that the complainant visited the office of the Opposite Parties, through every possible means and requested them to handover possession of the plot, in question, alongwith all amenities and infrastructure but they did not pay any heed.
5.       It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay a sum of Rs.1,50,000/- on account of additional financial burden caused to the complainant; Rs.2,50,000/- as compensation for mental agony suffered and Rs.25,000/- as cost of proceedings.
6.       Despite deemed service, none put in appearance, on behalf of Opposite Parties No.2 and 3, before the District Forum, as a result whereof, it was proceeded against exparte, vide order dated  17.04.2015.
7.       Feeling aggrieved, the instant Revision-Petition, was filed by the Revision-Petitioners/Opposite Parties No.2 and 3, against the order dated 17.04.2015.
8.       We have heard the Counsel for the Revision- Petitioners/Opposite Parties No.2 and 3,  respondent  No.1/complainant, and have gone through the record of the case, carefully.
9.       The Counsel for the Revision-Petitioners/ Opposite Parties No.2 and 3, submitted that, no doubt, Opposite Parties No.2 and 3 were proceeded against exparte on 17.04.2015 by raising presumption of deemed service, by the District Forum. He further submitted that in-fact, Opposite Parties No.1, 2 and 3 are one and the same Company. He further submitted that, after receiving notice of the consumer complaint sent to Opposite Party No.1, the Counsel concerned, put in appearance before the District Forum, whereupon, it transpired that Opposite Parties No.2 and 3, had already been proceeded against exparte, on 17.04.2015, by it (District Forum), on the ground of deemed service.  He further submitted that the absence of the Revision-Petitioners/Opposite Parties No.2 and 3, on 17.04.2015, in the District Forum, was,  neither intentional, nor deliberate. He further submitted that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to the Revision-Petitioners/Opposite Parties No.2 and 3, as, in that event, they would be  deprived of filing written statement, as also evidence to rebut the case set up by the complainant. He further submitted that, thus, the order of the District Forum, in proceeding exparte against Opposite Parties No.2 and 3, is liable to be set aside, and the case deserves to the remanded back, to it, for fresh decision, after affording  them (Opposite Parties No.2 and 3)  an opportunity of filing the written version, and evidence, by way of affidavit(s).  
10.           On the other hand, the Counsel   for  respondent No.1/complainant, submitted that the order dated 17.04.2015, passed by the District Forum being legal and valid, does not call for any interference.
11.           Perusal of the District Forum record, reveals that the complaint was admitted, vide order dated  02.03.2015, and notice was ordered  to  be  issued to the Opposite Parties, for 17.04.2015. On 17.04.2015,  notice through Registered A.D. Cover, sent for the service of Opposite Parties No.2 and 3, was not received back with any report, though a period of 30 days,  from the date of issuance of the same had expired. None appeared, on behalf of Opposite Parties No.2 and 3, on 17.04.2015. Accordingly, the District Forum held that Opposite Parties No.2 and 3 were deemed to be served but none came present on their behalf, as a result whereof they were proceeded against exparte. However, since notice sent to Opposite Party No.1, through ordinary post was not received back served or unserved, as such, it was ordered to issue notice to it, through registered post for 28.05.2015.
12.           No doubt, perusal of the District Forum record, clearly reveals that Opposite Parties No.2 and 3 (now Revision-Petitioners), were legally proceeded against exparte, on 17.04.2015, as none put in appearance, on that date (17.04.2015), on their (Opposite Parties No.2 and 3)  behalf, yet, it is settled principle of law, that every lis should normally be decided, on merits, than by resorting to hyper-technicalities. When hyper-technicalities, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same.  In State of Punjab and another vs. Shamlal Murari & Anr., AIR 1976 SC 1177, the principle of law, laid down, was to the effect that procedure, is, in the ultimate, handmaid of justice, and not its mistress, and is meant to advance its cause, and not to obstruct the same. The procedural Rule, therefore, has to be liberally construed, and care must be taken, that so strict interpretation be not placed thereon, whereby, technicality may tend to triumph over justice. It has to be kept in mind, that an overly strict construction of procedural provisions, may result in the stifling of material evidence, of a party, even if, for adequate reasons, which may be beyond its control. We must always remember that procedural law, is not an obstruction, but an aid to justice. Procedural prescriptions are the hand-maid, and not the mistress, a lubricant, not a resistant, in the administration of justice. If the breach can be corrected, without injury to the just disposal of a case, regulatory requirement should not be enthroned into a dominant desideratum. The Courts and the quasi-Judicial Tribunals, have been set up, with the sole purpose of dispensing justice, and not to wreck the end result, on technicalities.
13.           In our considered opinion, an opportunity should be afforded to Opposite Parties No.2 and 3, for filing vakalatnama, written version, and evidence, by way of affidavit(s), so that the complaint could be decided, on merits, and the rights of the Parties are finally determined, by one Forum, one way or the other. In this view of the matter, the order impugned is liable to be set aside.
14.           For whatsoever, the reason may be, by not appearing, in the District Forum, on the date fixed, and not filing the vakalatnama, written version, alongwith evidence, by way of affidavit(s), the Revision-Petitioners/Opposite Parties No.2 and 3, certainly caused delay, in the disposal of complaint, on merits. According to Section 13 (3A) of the Act, an endeavour should be made to decide every complaint,  within three months, from the date of service of the Opposite Party(ies), except the one, in which the goods are required to be sent to the Laboratory, for examination. In that event, an endeavour should be made to decide the complaint, within a period of 5 months, from the date of service of the Opposite Party(s). The complaint was filed, in the District Forum, on 26.02.2015. Three months have already elapsed. Since, the case is being remanded back, certainly further delay shall be caused, in the disposal thereof. The Revision-Petitioners are, thus, required to be burdened with costs, for causing delay, in the disposal of complaint and to meet the ends of justice.
15.           For the reasons recorded above, the Revision-Petition is accepted. The order dated 17.04.2015, rendered by the District Forum, is set aside, subject to payment of costs of Rs.3,000/- by the Revision-Petitioners/Opposite Parties No.2 and 3, to respondent No.1/complainant. The District Forum shall grant only one reasonable opportunity, to Opposite Parties No.2 and 3, for filing vakalatnama, written reply, alongwith evidence, by way of affidavit(s), and thereafter decide the complaint, on merits, in accordance with the provisions of law. The payment of cost to the tune of Rs.3,000/-, referred to above, to respondent No.1/complainant, shall be a condition precedent. In other words, the payment of cost, shall be made, before filing the vakalatnama, written reply, alongwith evidence, by way of affidavit(s).
16.           The parties are directed to appear, before District Forum (I) on 09.06.2015 at 10.30 A.M., for further proceedings.
17.           The District Forum record, alongwith a certified copy of the order, be sent back, to it, immediately, so as to reach there, well before the date and time fixed i.e. 09.06.2015 at 10.30 A.M.
18.           Certified Copies of this order, be sent to the parties, free of charge.
19.           The Revision-Petition file be consigned to the Record Room, after due completion.

Pronounced.

June 04, 2015.

 

 

Sd/-

[DEV RAJ]

PRESIDING MEMBER

 

 

Sd/-

PADMA PANDEY

MEMBER

 

 

Rg